11/14/2013
Search, Seizure, Statutes & Statements as applied to
LA Highway Safety Issues
JEAN and HARMON DREW
L.D.A.A. Fall Conference * 20 Nov ’13
Taught from 2014 True Blue Drew Book
Quick Run‐thru of the book
 The purpose of the book is to assists cops on the
street with the most common problems faced.
 2013 matters are
 [Jurisprudence & Statutes]
 Statutory comments are
bold‐faced.
 Don’t ditch the book – it will help an officer.
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“In Custody”
Page 03
A person may be seized, detained, & not free to go, & still not be IN CUSTODY, for purposes of Miranda. Being “In Custody”
Suspect is denied freedom of action
in an extensive way, which implies
an extended prosecution.
An “Extensive Restraint”
“Significantly Detained”
St. v Davis (LA 1984).
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No Miranda on a typical traffic stop
See on Page 04: Berkemer v McCarty (1984)
PA v Bruder (1988)
Yarborough v Alvarado (2004)
“In custody test” is objective.
Statements at the Scene
 State v Shirley (LA 2009)
 Page 05
 What is the perception of a reasonable suspect?
 No arrest.
 No arrest‐like attributes.  No cuffs.
 No placing in patrol car.
 No removing from public to private area.
 Ability to end the encounter.
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Questioning a Drunk
See Page 06.
St v Thornton (LA 2012)
Absent any coercion, the statement of an impaired person is voluntary.
What’s he on?
Doesn’t matter.
The question is whether the operator is impaired.
State v Kestle (La. 2008) Bottom of Page 259
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A Quick “By the Way”
The Two‐Step Interrogation is still alive and very much illegal. See Missouri v Seibert (2004)
Top of Page 05. Reversals throughout the USA.
Best Recent Idea
As we bragged in DeRidder
about Bossier’s superb and expensive video conferencing set‐up, Judges Anderson and O’Neal simply replied: “We use Skype.”
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DWI SEARCH WARRANTS
 Statutory Approval on Pgs 30 – 32.  First in Louisiana, to our knowledge: Beauregard Parish.  Perfected in Rapides Parish.
 The critical importance of quickly securing a search warrant: Evidence of a crime is rapidly dissipating. A Loser Case with Great Results
 Missouri v McNeely (2013) Top of Page 139.
 Opinion came out seven months ago.
 The officer stopped an impaired operator.
 The police officer did NOT have: Consent, nor
Mandatory Implied Consent, nor a Search Warrant, so he just drove McNeely to an ER and directed that his blood be drawn.  USSC: No per se authority to draw blood without warrant/consent/implied consent.
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Ramifications of MO v McNeely
Clear Approval of the electronic application for Search Warrants for DWI draws. Search Warrant Suggestions
Canned “I Love Me” language for use in the affidavit. Where and What for should be typed only one time.
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Our Mild Concern…
 As technology improves and our laws advance, electronic SWs will be MORE and MORE common.
LESS and LESS • We wonder whether courts will soon become approving of warrantless searches •
(e.g., PC/Exigent Circumstances).
IMPLIED CONSENT
 Starts with Operation of a MV on a public highway.
 If an arrest for a DWI or VEHICULAR‐related crime, then
Implied Consent is triggered.
 See R.S. 32:661 A (1) on Page 223.
 Motorist has already agreed to blow.
 Vehicular
means there is an impaired operator of a
motor vehicle (Includes DWI).
 See Subs. F (1) under the DWI statute on Page 144.
 Refusal is possible with dire ramifications as to driving
privileges & determination of guilt.
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NO REFUSAL
R.S. 32:666 A (1) (a) (i) on Page 227.
Refusal is not allowed, when an officer
has PC for a DWI/VEH crime:
Two previous refusals, Death, or SERIOUS BODILY INJURY.
“SERIOUS BODILY INJURY”
 Is statutorily‐defined ‐> not common‐sense.
USUALLY five ways to prove the situation:  Extreme Pain
 Impairment/loss of organ or mental faculty
 Obvious and protracted disfigurement  Unconsciousness
 Near death experience. 9
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COMPARISONS
 “Inflict Great Bodily Harm”
“Injury Requires Medical Attention”
“Serious Bodily Injury”
Strictly construed: ST. v. HELOU (LA 2003) – Pg 259
Only FOUR Ways to prove “Serious Bodily Injury for Implied Consent:
Omits Extreme Pain.
See bottom left of Page 227.
Includes the other four ways.
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Who can draw the blood?
R.S. 32:664 – Page 226
 EMTs – [NOT Basic]
 Physicians
 Registered Nurses
Intermediate &  Chemists
Paramedic EMTs can  Qualified Technicians
perform invasive  Physician Assistants
procedures.
 Nurse Practitioners
Warrantless Searches of MVs
ENTIRE MOTOR VEHICLE:
1. Probable Cause
2. Inventory
3. Consent
For evidence
For valuables
For evidence
 PASSENGER COMPARTMENT ONLY:
4.
5. SITA
Frisk
For Weapons or Evidence
For Weapons
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PROBABLE CAUSE
Search of MVs.
Carroll v US (1925).
PC and exigent circumstances.
The entire car.
Page 18.
INVENTORY – Page 27
 South Dakota v Opperman (1976)
 An Administrative Search
 Purpose: To make a listing of valuables.
 Standard forms and procedures.
 Florida v Wells (1990)
 Policy required for inventory of closed containers. 12
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CONSENT Search of MVs – Page 24
 Consent can be limited to certain areas of the motor vehicle.  Consent can be withdrawn.
 Consent to search a MV is consent to search the containers therein, if three simple questions can be answered affirmatively, per FL v Jimeno (1991).
Jimeno’s Container Consent Qs
1. Did the officer reasonably believe he had permission to search the container?
2. Could what the officer was looking for fit into the container? 3. Could the officer get into the container without damaging or destroying it?
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SEARCH of MV INCIDENT TO ARREST
[“SITA”]
 Passenger compartment only
 Including closed containers
 For weapons or evidence
 But only if there is REASONABLE BELIEF that evidence of the crime of arrest is in the car, per Gant v AZ
(2009) – See page 21. Of Possible Assistance
State v Cook
 83 So. 2nd 1259 (La. App 2 Cir (02/21/2012).  Helpful language in this published writ.
DWI arrests should always pro‐
vide reasonable belief that evidence of the DWI is inside the motor vehicle. 14
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FRISK OF A MV – PAGE 14
 Purpose: Officer Safety
 Landmark case: Michigan v Long (1983).
 Requires 3 “yes” answers to 3 questions.
1. Has the officer frisked someone?
2. If that person about to re‐enter the vehicle?
3. Does the officer still have a reasonable
suspicion of danger as to the subject?
Three “Yes” Answers needed
in order to Frisk the MV
1. Has the officer frisked someone?
2. Is that person about to re‐enter the vehicle?
3. Does the officer still have a reasonable suspicion of danger as to the subject?
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PLAIN VIEW TRAP DOOR
Coolidge v N.H. (1971)
Horton v California (1990)
St. v Seiler (May 25, 2012)
St. v Bush (June 01, 2012) See handout & Page 19 of 2014 TBDB.
Resisting an Officer
R.S. 14:108  Pages 154 & 155 of 2014 TBDB.
 Must involve one of 04 situations: arrest, deten‐
tion, seizing property, executing any order of the court.
 General prohibitions: Unlawful to resist, interfere with, oppose or obstruct the officer.
 See (c) on page 155: Detainees must ID themselves.
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FLIGHT FROM AN OFFICER
 R.S. 14: 108.1
 Page 155 of 2014 TBDB
 Requires a pursuing marked unit, using lights/siren.
Becomes a felony if any two of the
six factors found in Subsection “D”
can be shown.
Lawsuits are on your way.
 Check out the 09 related statutes on Pages 268‐269.
 SAFE PREGNANCY FOR INCARCERATED WOMEN ACT
 Applies to pregnant prisoners in 2nd or 3rd Trimester.
 Requires:  Least restrictive restraint necessary.
 Notice to the pregnant prisoner.
 Prohibits:  Electronic restraint belts
 Handcuffing behind the back
 Leg Irons
 No face‐down position (i.e., No “proning out.”)
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Seat Belts Saved Us. THANK YOU.  We are honored to be here with you. Wear your seat belt – it works.  Jean and Harmon Drew
 Downtown Minden, Louisiana
www.drewlawbooks.com
[email protected]
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Plain View
A Trap Door to be Avoided
www.drewlawbooks.com * Jean and Harmon Drew
COOLIDGE v NH, 403 US 443, 91 S.Ct 2022 (1971)
Established Plain View, but required inadvertency.
19 years pass.
HORTON v CA, 496 US 128, 110 S.Ct 2301 (1990)
USSC reaffirmed Plain View, but did away with
the Coolidge requirement of inadvertency.
22 years pass.
STATE v SEILER, 89 So.3d 1159 (LA 5.25.12) - See page #23 of 2014 TBDB.
LASC affirmed Plain View, but quoted the boiler plate Coolidge
language that required inadvertency, without mentioning Horton.
One week passes.
STATE v BUSH, 90 So.3d 395 (LA 06.01.12) - See page #19 of 2014 TBDB.
LASC correctly quoted Horton, omitting the inadvertency language of Coolidge.
Bottom Line
L
In arguing Motions to Suppress involving the issue of Plain View:
Cite Horton and Bush,
Not Coolidge and Seiler.
11.12.13.
C:\Users\Harmon and Jean Drew\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\0IZJ7YK6\Plain View Trap Doorto be Avoided.wpd